38Determinations with respect to representative complaints

38 Determinations with respect to representative complaints

38 Determinations with respect to representative complaints

(1) In proceedings relating to a representative complaint, the Tribunal must determine, as a preliminary matter, whether the complaint should be dealt with as a representative complaint.

(2) The Tribunal must not permit a complaint to be dealt with as a representative complaint unless the Tribunal is satisfied the complaint is made in good faith as a representative complaint.

(3) In considering whether a complaint is made in good faith as a representative complaint, the Tribunal must be satisfied—

(a) that—

(i) the complainant is a member of a class of entities whose members have been affected, or may reasonably be likely to be affected, by the conduct of the respondent, and

(ii) the complainant has in fact been affected by the conduct of the respondent, and

(iii) the class is so numerous that joinder of all its members is impracticable, and

(iv) there are questions of law or fact common to all members of the class, and

(v) the claims of the complainant are typical of the claims of the class, and

(vi) multiple complaints would be likely to produce varying determinations that could have incomparable or inconsistent results for the individual members of the class, and

(vii) the respondent has acted on grounds apparently applying to the class as a whole, making relief appropriate for the class as a whole, or

(b) that, even though the requirements of paragraph (a) are not satisfied, the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint.

(4) If the Tribunal is satisfied a complaint could be dealt with as a representative complaint if the class of individuals on whose behalf the complaint was made is increased, reduced or otherwise altered, the Tribunal may amend the complaint so the complaint may be dealt with as a representative complaint.

(5) If the Tribunal is satisfied a complaint has been wrongly made as a representative complaint, the Tribunal may amend the complaint by removing the names of the individuals or the class of individuals on whose behalf the complaint was made so the complaint may be dealt with as a complaint other than a representative complaint.